ICCPR Case Digest

CCPR/C/128/D/2974/2017

Communication

2974/2017

Submission: 2016.10.15

View Adopted: 2020.03.13

P. & B. v. The Netherlands

Claim of a violation of an effective remedy, the right to life and ill-treatment due to the cancellation of health insurance and social benefits, inadmissible as the authors failed to exhaust domestic remedies

Substantive Issues
  • Effective remedy
  • Liberty and security of person
  • Non-discrimination
  • Privacy
  • Right to life
  • Torture / ill-treatment
Relevant Articles
  • Article 17
  • Article 2.3
  • Article 26
  • Article 6
  • Article 7
  • Article 9
Full Text

Facts

The authors of the communication are Ms B.P and Mr P.B born in 1966 and 1970, respectively and are both nationals of hungary. Unfortunately, Mr B has been reliant on a high dose of medicines for nearly 20 years as he suffers from psychiatric and somatic diseases. In addition to these illnesses, Mr.B sustained further injuries resulting from an attck in 2014. Subsequently, Mr B applied for damages for his injuries, but this was rejected by the Damages Fund for Victims of Violence on 16 March 2016. On 29 August 2016, Mr B. was refused treatment, which resulted in the loss of his leg - if not his life. 

Ms.P and himself, who are not married but are partners, reside together and Ms. P takes care of the Mr.B's injuries. On 20 January 2015 - the municipality of Amsterdam rejected Ms.P's application for social benefits - as she has not resided in the Netherlands for more than 5 years. Due to this, the couple moved to Haarlem, where they were each accorded 549 euros (an amount that was reduced due to the fact that four adults lived together). Mr.B and Ms.P tried on multiple occaions to apply for social benefits and a postal address within the district of Haarlem during August 2015 to November 2015. During such time, the municipality cancelled their social benefits and refused rental subsidies, on the basis that the authors were not registered as residents of the district. 

Mr. B requested a review in Novermber 2015, which was rejected on 16 February 2016, on the basis that it had not been filed within the prescribed statutory time. On 10 March 2016, the municipality of Haarlem informed the authors that their registration on the Basic Civil Registry had been cancelled on account that the municipality could not reach the authors to verify their details or information on their stay in the Netherlands. Due to the lack of registration, on 11 May 2016 the authors health insurer notified them that they intended to cease their health insurance by 5 July 2016, as without verification of the authors having the correct permits to reside or work in the Netherlands, they could not be insured under the Long-term Care Act. 

The authors wrote to the King's Commissioner for North Holland on 25 June 2016, seeking relief (including registration in the Basic Civil Registry), as they claimed that they were unable to go to shelters on the basis of Mr.B needing treatment and a hygienic living environment. On the 29 June 2016, the District Court of North Holland decalred Mr.B's application for review as unfounded, as Mr.B could not use his health or financial situation as an excuse for not appealing in a timely fashion. Subsequently, the authors' address registration application was refused on 12 October 2016, as they appeared as non-residents on the Basic Civil Registry due their lack of residential or postal address. Mr. B then applied to be temporarily provided with an address to regain his social and insurance benefits - which was rejected. Mr. B appealed this decision, which once again was rejected on the basis that the author failed to appear at the review. 

The municipality of Amsterdam granted Ms.P social benefits on the 9 March 2017, due to the state of her homelessness. It also informed her that they would be contacted the Immigration and Neutralisation Services (IND) to question the legality of her stay - the IND informed Ms.P on the 20 July 2017, that her stay in the Netherlands was illegal due to her de-registration from the Basic Civil Registry twice and that she had forfeited her rights as an EU citizen due to her 6 month stay out the EU. Ms. P then appealed this, which was rejected in January 2018 as it was filed outside the legal time limit. 

The authors complained that the State Party had violated articles 2(3), 6, 7, 9, 17 and 26 of the Covenant. The authors demand that the State party register their address, pay the entirety of their debts, provide them with at least 5000 euros immediately, reactivate their health insurance, guarantee them health insurance for the rest of their lives, grant the necessary social benefits, permit the couple to choose their own residence, accord damages for the attack against Mr.B and withdraw all fraud charges against them. 

 

 

 

Admissibility

Before considering any claim, the Committee must in accordance with Rule 97 of its procedure, decide whether the communication is admissible under the Optional Protocol. The Committee is required by article 5(2)(a) of the Optional Protocol, to take note that the same matter is not being examined by any other international procedure of investigation or settlement. 

The Committee decides the communication is inadmissible, on the basis of these facts and criteria: 

  • The Committee states that the authors have not exhausted all domestic remedies, as they have failed to lodge a timely appeal to the District Court of North Holland and, Mr.B failed to meet with the authorities. The Committee recals that there is no obligation to exhaust domestic remedies if they have no chance of being successful, but the authors of the communication must practice due diligence in pursuing domestic remedies - mere doubt of the effectiveness of the remedy will not absolve the authors from their obligations. 
  • Furthermore, the Committee is under the observation that even though the authors contacted the ombudsman of Amsterdam and several others, they failed to engage in judicial remedies. All the remedies provided to them needed to filed within a statutory time limit, which the authors failed to do so multiple times. The authors have also failed to give an explanation as to why they were unable to comply with the prescribed time limits in filing their appeals and reviews. 

 

The Committee notes that the authors failed to exhaust all domestic, judicial remedies available to them. In addition to this, they have been unable to explain why the available remedies would be ineffective or unavailable to them. Thus, the above communication is inadmissble under Article 5(2)(b) of the Optional Protocol. 

Rules of Procedure of the Human Rights Committee

Rules of Procedure of the Human Rights Committee CCPR/C/3/Rev.10

Arabic | Chinese | English | French | Russian | Spanish

CCPR NGO Participation

Documents adopted by the Human Rights Committee (March 2012)

English | French | Spanish | Russian | Handbook

CCPR NHRI Participation

Documents adopted by the Human Rights Committee (November 2012)

English | French | Spanish | Russian | Arabic | Chinese